NIGERIAN BREWERIES PLC v. CHIEF JOHN AKPERASHI & ANOR (2019)

NIGERIAN BREWERIES PLC v. CHIEF JOHN AKPERASHI & ANOR

(2019)LCN/13091(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/MK/74/2015

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

NIGERIAN BREWERIES PLC Appellant(s)

AND

1. CHIEF JOHN AKPERASHI
2. COMMISSIONER OF POLICE, BENUE STATE Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

As rightly submitted by the Appellant, jurisdiction is a threshold issue, that affects the root of the matter. If a Court has no jurisdiction to entertain a matter, any judgment or order proceedings there from is a nullity, no matter how well conducted the proceedings; Madukolu & Ors v. Nkemdilim (supra), (1962) LPELR-24023(SC) at page 10 of the E-Report. It is well settled that a Court would be competent to hear and determine the issue before it when:
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any challenge to the jurisdiction of a Court ought therefore to be determined first. PER OTISI, J.C.A.

DEFINITION OF AN ARBITRATION CLAUSE

Expounding the nature and function of an arbitration clause, the Supreme Court in Royal Exchange Assurance v. Bentworth Finance (Nig) Ltd (1976) LPELR-2961(SC) at page 22 of the E-Report said:
?An arbitration clause in a written contract is quite distinct from the other clauses. Whereas the other clauses in a written contract set out obligations which the parties undertake towards each other, the arbitration clause merely embodies the agreement of both parties that if any dispute should occur with regard to the obligations which the other party has undertaken to the other, such dispute should be settled by a Tribunal of their own constitution and choice.?
(Emphasis mine)
This Court, per Ndukwe-Anyanwu, JCA in BCC Tropical (Nig) Ltd v. Government of Yobe State of Nigeria & Anor (2011) LPELR-9230(CA) restated as follows, page 13 of the E-Report:
?In a contract,
“An arbitration clause is a clause inserted in a contract providing for compulsory arbitration in case of dispute as to rights and liabilities under such contract. The purpose of that clause is to avoid having to litigate disputes that might arise. See the case of M.V. LUPEX V. N.O.C. AND SON LTD. (2003) 15 NWLR PART 844 PAGE 469.?
(Emphasis mine)
Therefore, for a dispute between the parties to a contract with an arbitration clause to be referred to arbitration as agreed, the dispute must be within the contemplation of the clause. See also: The Owners of the M. V. Lupex v. Nigerian Overseas Chartering and Shipping Limited (2003) LPELR-3195(SC); Onyekwuluje & Anor v. Benue State Govt. & Ors (2015) LPELR-24780(SC); SCOA (Nig) Plc v. Sterling Bank Plc (2016) LPELR-40566(CA). PER OTISI, J.C.A.

WHETHER OR NOT JURISDICTION OF A COURT IS DETERMINED BY THE CLAIM OF THE PLAINTIFF

It is well settled that the jurisdiction of a Court to entertain a matter is determined by the claim of the plaintiff as endorsed in the writ of summons and statement of claim or other originating process; Madukolu v Nkemdilim (supra); Western Steel Works Ltd & Anor v. Iron and Steel Workers Union Of Nig. & Anor (1987) LPELR-3480(SC); Emejuru & Anor v. Abraham & Ors (2018) LPELR-46330(SC). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court sitting at Makurdi in Suit No: FHC/MKD/CS/66/2015 delivered on June 25, 2015 Coram Binta F. M. Nyako, J., in which the application by the 1st Respondent to enforce his fundamental rights was granted by the lower Court.

The 1st Respondent was the applicant before the trial Court; while the Appellant and the 2nd Respondent were the 1st and 2nd Respondents respectively. The facts leading to the appeal are as follows: The Appellant and the 1st Respondent entered into a Brand Exclusivity Agreement on 23/12/2013 wherein the 1st Respondent was required to exclusively promote and sell alcoholic and non-alcoholic brands of the Appellant. Pursuant to the said agreement, the Appellant supplied a 100KVA generator and other items to the 1st Respondent for use at his business premises known as Balcony Park and Garden Bar, Makurdi. Under the said agreement, the Appellant reserved the right to terminate the contract in the event of 1st Respondent?s breach of the terms of the agreement; and upon such termination, the 1st

Respondent shall relinquish the items (including the generator) ‘availed him by the Appellant. The Appellant was also empowered to enter into the 1st Respondent’s outlet for the purpose of retrieving the said items. The Appellant alleged that the 1st Respondent acted in breach of the agreement. The Appellant thereupon terminated the agreement and notified the 1st Respondent by letters dated 26/3/2014 and 31/7/2015. The Appellant also requested the 1st Respondent’s release of the Appellant’s trade items in 1st Respondent’s outlet. By letters dated 24/4/2014 and 4/8/2014 the 1st Respondent denied the allegation that he had breached terms of the Agreement and suggested a meeting between the Appellant and himself to resolve the matter. The Appellant then wrote to the 2nd Respondent on 3/2/2015 requesting the 2nd Respondent’s assistance for the possible recovery of the 100KVA generator set, and attaching copies of the agreement and all the relevant correspondences it exchanged with the 1st Respondent. After consideration of the Appellant’s letter and the attachments thereto, the 2nd Respondent invited the 1st Respondent on a case of Criminal Breach of Trust.

The Appellant averred that this allegation was made by the 2nd Respondent without recourse or reference to the Appellant. The 1st Respondent reported to the office of the 2nd Respondent, made statement and was granted bail on the same day, upon filling a bail bond on self recognizance. The 1st Respondent however alleged he was only released the next day and that he had not been arraigned before any Court of law. Aggrieved by his arrest and detention overnight without having committed any criminal offence, the 1st Respondent approached the trial Court to enforce his fundamental rights against the Appellant and the 2nd Respondent. The learned trial judge found and ruled in favour of the 1st Respondent and ordered damages, in the sum of N500,000.00 against the Appellant and 2nd Respondent jointly. Dissatisfied with the decision of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 15/7/2015 on five grounds of appeal, pages 84 ? 88 of the Record of Appeal.

The parties filed Briefs of Argument, pursuant to the Rules of this Court. At the hearing of the appeal on 26/3/2019, A.J. Osayande, Esq., adopted the Appellant?s

Brief which was filed on 2/10/2015 but deemed properly filed and served on 10/4/2017. The 1st Respondent?s Brief, which was filed on 5/6/2017 but deemed properly filed and served on 26/3/2019, was adopted by D.O. Penda, Esq., who held brief for T.Y. Ornguga, Esq. The Appellant did not file a Reply Brief. The 2nd Respondent, who was served with Hearing Notice on 20/3/2019, did not appear and filed no Brief of Argument. Mr. Osayande urged the Court to allow the appeal, while Mr. Penda urged the Court to dismiss the appeal.

Out of five grounds of appeal, the Appellant distilled three issues for determination as follows:
1. Whether the learned trial Judge properly and judiciously evaluated the affidavit cum documentary evidence before the Court and drew proper inferences/conclusions therefrom?
Distilled from Ground 1 of the Notice of Appeal-
2. Having regard to extant laws, the totality of affidavit evidence and exhibits tendered before the trial Court, whether the 1st Respondent made out a case of infraction on his fundamental human right by the Appellant to warrant the award of damages against the Appellant?

Distilled from Grounds 2, 3 & 4 of the Notice of Appeal
3. Whether the learned trial Court, rightly assumed jurisdiction in this case having regard to the arbitration clause contained in the contractual agreement between the appellant and the 1st Respondent which is at the very root of this suit.
Distilled from Ground 5 of the Notice of Appeal.

For the 1st Respondent, the following issues were framed for determination:
i. Whether the learned trial Court rightly assumed jurisdiction in this case.
ii. Whether having regard to the facts and circumstances of the case, the trial Court was right in holding that the Appellant and the 2nd Respondent had violated the fundamental rights of the 1st Respondent and are, therefore, jointly liable to pay N500, 000.00 damages to him.

The issues as formulated by the parties are essentially the same. I shall be guided by the issues as framed by the Appellant in the determination of this appeal. Issue 3 which challenges the jurisdiction of the lower Court over the matter shall first be considered. Issues 1 and 2 shall be considered together.

Issue 3
The Appellant submitted that the trial Court had no jurisdiction to entertain the 1st Respondent’s suit. Jurisdiction is a threshold issue that can be raised at any time by parties and Court proceedings, judgment and or order made without jurisdiction is a nullity. Reliance was placed on the case of MV Arabella v. NAIC (2008) NSCR 1091. On when a Court would be competent to hear and determine the issue before it, the cases of Ogaga v. Umukoro [2012] All FWLR (Pt. 614) 41; Hope Democratic Party v. Obi [2012] All FWLR (Part 612) 1920; Madukolu v. Nkemdilim (1962) 2 NSCC 374; Ngere v. Eneyo [2010] All FWLR (Pt. 550) 1375 were cited and relied on. It was argued that in an action such as the present, it is the facts deposed to in the supporting affidavit that are to be considered to determine whether the trial Court has jurisdiction to entertain the suit of the plaintiff, relying on P. & C.H.S Co. Ltd v. Migfo (Nig) Ltd (2012) 3 NWLR (Pt. 1333) 555.

In the ruling, subject matter of this appeal, the learned trial Court found that the facts of the case and the dispute that gave rise to the 1st Respondent’s suit were predicated on the Appellant?s contract agreement with the 1st Respondent made

23/12/2013. The said contract agreement contained an arbitration clause at its paragraph 5.9 to the effect that any dispute arising from or concerning the agreement should be resolved by arbitration. It was submitted that the 1st Respondent?s submission of the dispute to arbitration was a condition precedent to the exercise of jurisdiction to the Court. Reliance was placed on the case of Nissan (Nig) Ltd v. Yoganathan (2010) 4 NWLR (pt. 1183) 135. It was further submitted that having found that the dispute between the parties emanated from the said contract, the trial Court ought to have declined jurisdiction to entertain the matter and refer the parties to arbitration in line with the said agreement.

For the 1st Respondent it was argued that he had approached the trial Court to enforce his fundamental rights to personal liberty and human dignity, which the Appellant and the 2nd Respondent violated. The 1st Respondent?s complaint before the trial Court had nothing to do with the agreement he entered into with the Appellant as the 1st Respondent did not approach the lower Court to enforce the terms of the contractual agreement between him and

the Appellant or to determine whether or not he was in breach of any of terms of the agreement. This Court had emphasized the duty of Courts in Nigeria to safeguard the constitutionally guaranteed fundamental rights in the case of Igwe and Ors v. Ezeanochie (2010) 7 NWLR (Pt.1192) 61 at 95. The provisions of Section 46(1) of the 1999 Constitution were relied on. The case of the 1st Respondent before the trial Court was that he was unlawfully arrested and detained by the 2nd Respondent at the instigation of the Appellant. This was an allegation of violation of 1st Respondent’s fundamental rights. It was submitted that a combined reading of Section 46(1) and (2) of the Constitution would reveal that the trial Court had jurisdiction to hear and determine 1st Respondent’s complaint of violation of his fundamental rights to personal liberty and human dignity. The Court was urged to find and hold that since the 1st Respondent’s complaint before the trial Court did not have to do with the enforcement of the agreement he had with the Appellant or the breach of any of its terms, but to enforce his fundamental rights, he was not bound to first refer the matter to an

arbitrator; the trial Court rightly assumed jurisdiction over the case.

Resolution
As rightly submitted by the Appellant, jurisdiction is a threshold issue, that affects the root of the matter. If a Court has no jurisdiction to entertain a matter, any judgment or order proceedings there from is a nullity, no matter how well conducted the proceedings; Madukolu & Ors v. Nkemdilim (supra), (1962) LPELR-24023(SC) at page 10 of the E-Report. It is well settled that a Court would be competent to hear and determine the issue before it when:
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any challenge to the jurisdiction of a Court ought therefore to be determined first.

The Appellant and the 1st Respondent had a contract under a Brand Exclusivity Agreement attached as Exhibit 1 of the 1st Respondent?s application to enforce his fundamental rights, reproduced at page 13 of the Record of Appeal. Under the said Agreement, the 1st Respondent was required to exclusively promote and sell alcoholic and non-alcoholic brands of the Appellant in his business premises. There were obligations for both the parties pursuant to which the Appellant supplied a 100KVA generator and other items to the 1st Respondent for use at his business premises. There was also an arbitration clause in paragraph 5.9 of the Agreement in these terms:
Any dispute arising from or concerning this agreement shall be amicably resolved by both parties failing which it shall be referred to a single arbitrator appointed by the president of the Logos Chamber of Commerce and Industry in accordance with the provisions of the Arbitration and Conciliation Act Cap A 18 Laws of the Federation of Nigeria 2004 or any statutory modification thereof. The place of Arbitration shall be Lagos and the decision of the Arbitrator shall be final and binding on the parties herein.

See the case of M.V. LUPEX V. N.O.C. AND SON LTD. (2003) 15 NWLR PART 844 PAGE 469.?
(Emphasis mine)
Therefore, for a dispute between the parties to a contract with an arbitration clause to be referred to arbitration as agreed, the dispute must be within the contemplation of the clause. See also: The Owners of the M. V. Lupex v. Nigerian Overseas Chartering and Shipping Limited (2003) LPELR-3195(SC); Onyekwuluje & Anor v. Benue State Govt. & Ors (2015) LPELR-24780(SC); SCOA (Nig) Plc v. Sterling Bank Plc (2016) LPELR-40566(CA). A dispute connected on the periphery with the contract cannot be subject matter of arbitration as it has not arisen from envisaged disputes connected to the contract, more so when a third party to the arbitration clause is actively connected with the dispute.

The Appellant alleged a breach of his fundamental rights and sought the following orders from the lower Court against the Appellant and the 2nd Respondent:
1. A DECLARATION that the arrest and detention of the Applicant between February 18, 2015 and February 19, 2015 by the 2nd Respondent at the behest or instigation of the 1st Respondent without the

Applicant having committed ANY criminal offence known to law is a violation of the Applicant’s fundamental right to personal liberty.
2. A DECLARATION that the detention of the Applicant by the 2nd Respondent, between February 18, 2015 and February 19, 2015 in a squalid, filthy and overcrowded cell without light and ventilation at the Benue State Police Command Headquarters, at the behest or instigation of the 1st Respondent, is violative of his right to dignity of human person.
3. A DECLARATION that the alleged breach of Brand Exclusivity Agreement by the Applicant, which agreement the Applicant has with the 1st Respondent, is not a criminal offence warranting a report thereof to the police and the subsequent arrest and detention of the Applicant on the basis of the alleged breach of the said agreement.
4. AN ORDER of the Honourable Court restraining the Respondents themselves or their agents, servants or howsoever called from further inviting, arresting and detaining the Applicant in connection with the alleged breach of the Brand Exclusivity Agreement the Applicant has with the 1st Respondent.
5. AN ORDER directing and compelling the

Respondents, jointly and severally, to pay to the Applicant general damages in the sum of fifty million naira (N50,000,000) only for the violation of the Applicant’s fundamental rights to human dignity and liberty, as guaranteed by the Constitution of Federal Republic of Nigeria, 1999 (as amended).
6. Such further or other order(s) the Honourable Court may deem fit to make in the circumstance of the suit.

Straight on, it can be seen that the 2nd Respondent was not a party to the Brand Exclusivity Agreement between the Appellant and the 1st Respondent in which the arbitration clause was embedded. Further, a dispassionate scrutiny of the orders sought by the Appellant from the lower Court would reveal that his complaint had absolutely no direct correlation with disputes envisaged by the terms of the Brand Exclusivity Agreement, which was the subject matter of the arbitration clause. The arbitration clause did not therefore affect the jurisdiction of the lower Court.

It is well settled that the jurisdiction of a Court to entertain a matter is determined by the claim of the plaintiff as endorsed in the writ of summons and statement of claim or other

originating process; Madukolu v Nkemdilim (supra); Western Steel Works Ltd & Anor v. Iron and Steel Workers Union Of Nig. & Anor (1987) LPELR-3480(SC); Emejuru & Anor v. Abraham & Ors (2018) LPELR-46330(SC).

The claim of the 1st Respondent which he submitted before the lower Court for adjudication was pursuant to Sections 34(1)(a), 35(1) and (6) and 46(1) of the 1999 Constitution, as amended, among others. Section 46(1) provides thus:
46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, made pursuant to the Constitution, “Court” means the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja. Although the Appellant did not extend his complaint on jurisdiction this far, I would also state that the trial Federal High Court had jurisdiction to entertain the matter, having regard to the interpretation given to Section 46(1).

In Jack v. University of Agriculture Makurdi (2004) LPELR-1587(SC) the Supreme Court, at page 11 of the E-Report, considered the provisions of Section 42(1) of the Constitution of the Federal Republic of Nigeria, 1979 and Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which are both in pari materia to Section 46(1) of the 1999 Constitution, as amended, and to Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and clarified as follows:
?What this means is this, both the Federal High Court and the High Court of a State have concurrent jurisdiction. An application may therefore be made either to the Judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur.?
See also Kolo v. NPF & ORS (2018) LPELR-43635(CA).

The point has earlier been made that the complaint of the 1st Respondent submitted to the lower for adjudication was unaffected by the arbitration clause was embedded. I therefore hold that the lower Court had jurisdiction to entertain this matter. Issue 3 is resolved against the Appellant.

Issues 1 and 2
It was submitted for the Appellant that there was improper evaluation and ascription of probative value to the evidence by the trial Court before it arrived at the ruling against the Appellant, culminating in a miscarriage of justice against the Appellant. The law is trite that the Court, in all trials before it, has a duty to consider fully and properly, the issues put forward by parties before arriving at decisions on such issues. There must be proper evaluation of the evidence adduced by each party in support of his position in the case, citing Skye Bank Plc. v. Akinpelu (2010) 9 NWLR (pt. 1198) 179; Atiku v. State (2010) 9 NWLR (pt. 1199) 241. On the meaning of evaluation of evidence, reliance was placed on Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356; Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249; Ilorin v. Tela (2006) 18 NWLR (Pt. 1011) 267 at 291. Learned counsel for the Appellant submitted that although an appellate Court would not ordinarily interfere with the findings of fact of the trial Court particularly where the evaluation involves assessment of the credibility

of witnesses, where from the nature of the evidence, the evaluation would not entail demeanor and credibility of witnesses and simply involves the examination of oral/affidavit and documentary evidence, the appellate Court is in as good a position as the trial Court to evaluate or re-evaluate the evidence on record and see if the findings of the trial Court are supported by the evidence. Where the findings made by the trial Court are not supported by evidence given or by the weight of evidence, the appeal Court can intervene and substitute therewith findings supported by evidence, relying on Adebayo v. Shogo (2005) 7 NWLR (pt. 925) 467; Teriba v. Adeyemo (2010) 11 NWLR (pt. 1211) 243; Olalomi Ind. Ltd. v. N.l.D.B. Ltd (2009) 16 NWLR (pt. 1167) 266 at 302.

It was further submitted that the 1st Respondent did not place any fact or evidence whatsoever before the trial Court indicating that it was the Appellant as a company or any member of its staff that violated his fundamental rights. There was therefore no basis for the trial Court’s award of monetary claims against the Appellant in favour of the 1st Respondent. Section 4 of the Police Act, 2004

provides for police powers, which is not limited to crimes and offenders but extends to preservation of law and order even in circumstances which does not involve outright criminality. It is also the civic responsibility of every citizen, to make report to the police aimed at averting breach of law. A citizen cannot be held liable for any alleged breach of the fundamental right of an applicant merely because he so lodged a complaint against a person with the appropriate authority or agency whose duty is discretionary and not ministerial with respect to whether or not to arrest and detain. Reliance was placed on Aroyewun v. C.O.P. (2004) 16 NWLR (pt. 899) 414 at 431; Nwangwu v. Duru (2002) 2 NWLR (pt. 751) 265 at 283; Fajemirokun v. Commercial Bank (Nig.) Ltd [2009] 5 NWLR (pt. 1135) 595 at 600.

It was further argued that the facts as presented by the affidavit evidence, do not demonstrate that the Appellant suggested or insisted on the alleged arrest and detention of the 1st Respondent by the 2nd Respondent. The affidavit evidence and Appellant?s letter to the 2nd Respondent, Exhibit NABBAT 1, go to show that the Appellant did not instigate the

arrest of the 1st Respondent. The Appellant was only interested in retrieving their trade items such as the generator in custody of the Appellant and not in the arrest of the 1st Respondent. It was argued that the Appellant was acting bona fide when it made a report to the police.

The law is trite that he who alleges must prove. It was argued that the 1st Respondent did not prove that his alleged arrest and detention fell beyond the constitutional limit prescribed in Section 35 (5) of the 1999 Constitutions, neither did he prove that the alleged infraction was instigated by the Appellant. The 1st Respondent had not made out a case of infraction of his right by the Appellant in the circumstances of this case. There was also no evidence to suggest that the 2nd Respondent had recourse to the Appellant before it took independent decision to commence an investigation into a case of Criminal Breach of Trust covered by Sections 311 and 312 of the Penal Code against the 1st Respondent, upon which the 1st Respondent was allegedly arrested and detained, citing the case of Fawehinmi v. Inspector-General of Police [2002] 7 NWLR (pt. 767) 606 at page

672-3. Where the 2nd Respondent performed its duties and the law supports them, the Appellant ought not to be held liable in damages for the purported arrest and detention of the 1st Respondent.

It was further submitted, assuming but not conceding that the 1st Respondent?s right was violated, the law is trite that when a citizen reports a matter to the police or any law enforcement agency for the exercise of their discretion including the discretion to investigate, neither the police nor the citizen would be liable for the breach of a right of arrest if the report to the police discloses a prima facie case against the applicant, relying on Bassey v. Afia [2010] All FWLR (pt. 531) 1477; more so when the arrest and the duration of detention is within the constitutional boundaries. The cases of Ejefor v. Okeke (2000) 7 NWLR (pt. 665) 363 at 380; Ezendukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635, were cited and relied on to submit that the Appellant, who did nothing more than reporting a matter to the police, cannot be held liable for the purported arrest and detention of the 1st Respondent or be liable for any of the reliefs contained in the 1st

Respondent’s originating application. The Court was urged to resolve this issue in favour of the Appellant.

For the 1st Respondent, it was submitted that on the facts of the case, which were not in dispute, both the Appellant and the 2nd Respondent did not act bona fide and lawfully but had acted mala fide and with intent to humiliate the 1st Respondent, who had not committed any criminal offence neither was any allegation of commission of a criminal offence made against him. It was submitted that where a person instigates the police to arrest and detain a person without reasonable and probable cause, both the complainant and the police are liable for the deprivation of the right to personal liberty: citing Jim-Jaja v. Commissioner of Police and 2 Ors (2011) 2 NWLR (pt. 1231)375 at 393. The arrest and detention of the 1st Respondent arose from a purely civil transaction. Appellant’s complaint to the police has not disclosed the commission of any criminal offence. It therefore did not lie in the mouth of the Appellant to argue that she only made a report to the police for the exercise of their discretion and cannot be liable for whatever happens after

the report. The Appellant’s complaint did not disclose a prima facie case against the 1st Respondent. It therefore cannot be argued that whatever happens after the report is entirely the responsibility of the police. The Court was urged to hold that, in this circumstance, the Appellant had acted mala fide and for that reason, the Appellant was liable for the violation of the 1st Respondent’s rights to personal liberty and human dignity. It was argued however that the Appellant would not have been liable if her complaint to the 2nd Respondent disclosed the commission of a criminal offence by the 1st Respondent; Bassey v. Afia (2010) All FWLR (pt. 531) 1477 at 1500-1501; Mbang v. Janet (2015) All FWLR (pt.767) 766 at 781.

It was further submitted that the trial Court was right to hold that the Appellant was liable for the violation of the 1st Respondent’s fundamental rights. The trial Court had evaluated the affidavit evidence of the 1st Respondent, on the one hand, and the affidavit evidence of the Appellant and the 2nd Respondent, on the other hand, and found that the facts of the case were and are not in dispute. The trial Court found that Appellant

made a report to the police against the 1st Respondent regarding a purely civil transaction, following which report the 1st Respondent was arrested and detained. The trial Court then believed the case of the 1st Respondent and entered judgment for him. The Court was urged to uphold the ruling of the lower Court and allow the appeal.

Resolution
Applications to enforce fundamental rights are, by the Fundamental Rights (Enforcement Procedure) Rules, 2009 determined by the affidavit evidence of the parties. It is therefore the affidavit evidence before the trial Court that the trial Court would rely upon for the determination of the matter. The affidavit evidence must therefore be properly evaluated; Mbang v. Janet (supra), (2014) LPELR-22656(CA).

The facts leading to this appeal are largely straightforward. In the letter written to the 2nd Respondent by the Appellant, which is the genesis of the present action, attached as Exhibit 6 to the 1st Respondent?s affidavit in support of the application before the lower Court, the Appellant wrote, page 23 of the Record of Appeal:
“May I bring to your knowledge a case of breached (sic) in

contractual agreement involving Nigerian Breweries Plc (NBPlc) and her customer Balcony Park and Garden, as contained in Sections 2-2.4 of the Brand Exclusivity Agreement document made on 23rd of December, 2013. And subsequently, in line with our agreement, we terminated the contract and require to recover our 100KVA generator from the customer?
Nigerian Breweries Plc is a law abiding company and do not intend to take laws into her hands.
Be that as it may, we are requesting for the assistance of the Police to ensure that justice prevail by possible recovery of the 100KVA generator set.”
?
I must confess that I find the contents of this letter to be very strange. The Appellant acknowledged that it had a contract with the 1st Respondent upon which a 100KVA generator was made available to the 1st Respondent. The Appellant stated that it had terminated the contract. It did not allege that it had made any attempt to retrieve the said generator or indeed any of its properties without success. There was no whiff of allegation that the 1st Respondent had converted or sought to convert the properties. There was also no allegation that the 1st

Respondent had resisted any attempt by the Appellant to recover the said generator or any other property belonging to him. It is therefore mind boggling to say the very least that the Appellant wrote to the police to say:
?Nigerian Breweries Plc is a law abiding company and do not intend to take laws into her hands.
Be that as it may, we are requesting for the assistance of the Police to ensure that justice prevail by possible recovery of the 100KVA generator set.?
(Emphasis mine)

The powers of the police as referred to by the Appellant are, concisely provided in Section 4 of the Police Act Cap. P19, LFN, 2004, to be as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
These provisions do not in any way empower the police to settle civil disputes of any

colour, including enforcing terms of a contract gone sour. Indeed, judicial pronouncements on this position of the law are legion. I will only mention a few. In Nwadiugwu v. IGP & Ors (2015) LPELR-26027(CA), this Court per Iyizoba, JCA held, page 35 of the E-Report:
?The 1st to 5th Respondents are neither debt collectors nor Arbitrators and Section 24 of the Police Act 2004 does not list settlement of disputes or collection of debts amongst the duties of the Police.?
In concurring with the lead Judgment in Ibiyeye & Anor v. Gold & Ors. (2011) LPELR-8778(CA), Mbaba, JCA, observed, at page 58 of the E-Report:
“…the resort to the police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the Courts. The Police have also been condemned, and rebuked, several times, for abandoning its primary duties of crime detection, prevention and control, to dabbling in enforcement or settlement of debts and contracts between quarreling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression. Unfortunately, despite all the

decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the Police remains at the root of many fundamental rights breaches in our Courts”
Again in Abah v. Union Bank of Nigeria Plc & Ors (2015) LPELR-24758(CA), Mbaba, JCA said, pages 97 ? 98 of the E-Report:
?We have stated, repeatedly, that the police (or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commissions (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pre of doing lawful duties. See the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (pt.677)653; (2012) LPELR 9218 CA ; where it was held:
“Appellant could not therefore hide under the cover of reporting the 1st Respondent for issuance of dishonoured cheques, to subject him to the ordeal of arrest and detention… and escape the wrath of the law. He was pursuing the recovery of the alleged debt and resorted to the use of the Police…”

See also: Abdullahi v. Alhaji Suleiman Buhari & Anor (2004) LPELR-11257(CA); Arab Contractors (O. A. O.) Nig Ltd V. Umanah (2012) LPELR-7927(CA); Okafor & Anor v. AIG Police Zone II Onikan & Ors (2019) LPELR-46505(CA).
The Appellant admitted in their letter to the 2nd Respondent that its relationship with the 1st Respondent was contractual. The question is: why would the Appellant write to the 2nd Respondent and create the impression that there had been aggravation of any degree from the 1st Respondent for which they have been compelled to act with restraint in the face of the provocation? The contents of the said letter were really an attempt by the Appellant to colour the purely civil contractual obligation between the Appellant and the 1st Respondent with criminality. In my view, the 1st Respondent rightly described the letter in paragraph 11 of his supporting affidavit, page 11 of the Record of Appeal, as:
?unkind, malicious, wicked and unfounded.?
I see the regrettable action of the Appellant as being in line with the unfortunate pervading culture of impunity sprouting energetically in this Country. See also: Abugo v. Aromuaino (2018) LPELR-46142(CA); Diamond Bank &

Anor v. Irechukwu & Ors (2018) LPELR-44866(CA). In the recent case of EFCC v. Diamond Bank Plc & Ors (2018) LPELR-44217(SC), the Apex Court, per Bage, JSC graphically described this regrettable trend in this manner, page 25 of the E-Report:
?What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies.?
?
The matter between the Appellant and the 1st Respondent was a contract with no

tint of criminality. The 1st Respondent had disputed the allegations of breach of contract in letters to the Appellant, copies of which were attached as Exhibits 3 and 5 to the 1st Respondent?s affidavit in support of his application; pages 18 and 21 of the Record of Appeal. The 1st Respondent even suggested a meeting to resolve the matter. Notwithstanding, the Appellant involved the 2nd Respondent to enforce contractual obligations upon an alleged breach of contract by the 1st Respondent. There is no doubt that the Appellant by their letter instigated the action taken by the 2nd Respondent.

The 1st Respondent deposed in paragraphs 16 and 17 of the supporting affidavit that he was arrested and detained at the Benue State Police Command Headquarters, Makurdi, by the 2nd Respondent from 18/2/2015 to 19/2/2015 in:
the squalid, filthy and overcrowded cell that had no light and ventilation and I was denied access to bath, food and contact with relatives. I slept on the bare floor of the cell full of urine.?

The Appellant and the 2nd Respondent deposed to counter affidavits in which they denied this allegation, pages 46

? 49 and pages 28 – 30. Their account is that the 1st Respondent was invited for investigation of a case of criminal breach of trust. He came into the office of the 2nd Respondent on 18/2/2015. His statement was recorded and he released on bail on self recognizance. The Appellant deposed to a Further Affidavit in which he deposed as follows:
6. That contrary to paragraph 7(d) of the 2nd Respondent’s said Counter Affidavit, I was not released “on the same day”, being 18.02.2015. That rather, after I had signed the bail application form at about 5.48pm of 18.02.2015, the Investigation Police Officer (IPO) told me he needed the approval of his “superior” to grant me bail on self recognizance and that since his “superior” had closed for the day my application could not be processed further until the following day when his said “superior” would come to the office.
7. That by 3pm of 19.02.2015, the IPO took me (from the Police Cell) to his said “superior” and after a long talk and argument that lasted for more than two hours, as to whether I would or would not jump police bail, the said “superior” reluctantly approved my bail on self recognizance.

There was no Further Counter Affidavit from the 2nd Respondent to controvert these depositions.

It is trite law that any fact in an affidavit which is neither challenged nor contradicted is undisputed and is deemed admitted by the adversary and the Court will so hold and act thereon; Jim Jaja v. Cop Rivers State & Ors (supra), (2012) LPELR-20621(SC). In The Honda Place Limited. v. Globe Motor Holdings Nigeria Limited (2005) LPELR-3180(SC), Edozie, JSC succinctly stated, page 33 of the E-Report:
?The position of the law is that when in a situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary, if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, they may be regarded as duly established see Agbaje v. Ibru Sea Foods (1972) 5 SC 50 at 55; Alagbe v. Abimbola (1978) 2 SC 39 at 40; Ajomale v. Yaduat (No.1) (1991) 5 NWLR (Pt. 191) 266.?
In Chairman, Chief Executive, NDLEA, Head Quarters, Lagos & Ors v. Umeh & Anor (2014)

LPELR-24373(CA), this Court, per Agube, JCA, graphically put it this way, pages 110-111 of the E-Report:
?The Law is trite that facts sworn to in an Affidavit constitute evidence upon which the Court can act in the resolution of the issues in controversy. Thus, where as in this Appeal the case in the trial Court was fought purely on Affidavit evidence the Deponents are deemed as witnesses and the Court will treat the Affidavits and Counter-Affidavits as oral evidence supported by documentary evidence. See Akeredolu V. Akinremi (1985) 2 N.W.L.R (Pt.10) 787 and Alhaji Jibrin Babale V. Innocent Eze (2011) 11 NWLR (Pt. 1257) 48 at 69 Para. H; where as in this case the Appellants did not deem it fit to file Further Counter-Affidavit to controvert the averments of the Applicant/1st Respondent’s Further Affidavit and Annexure “FA1″ thereto, the Appellants had admitted to the facts as deposed to in the Further Affidavit and the Court below was duty bound to act on those uncontroverted facts as the truth of the matter. See Egbuna V. Egbuna (1989) 2 N.W.L.R. (Pt.106) 773, Rakol Clinic & Maternity Hospital Ltd. V. Supreme Finance

Investment Co. Ltd. (1991) NWLR (Pt.612) 513, Long John V. Blakk (1998) 59 LRCN OOP 3864; and N.P.A. Vs. A.I.CO. (2010) 3 N.W.L.R. (Pt.1182) 487 at 491.?
However, any such unchallenged and uncontradicted facts which are deemed admitted in the affidavit must be capable of proving and supporting the applicant relying on such facts. That is to say, the affidavit evidence that is unchallenged must necessarily be cogent and strong enough to sustain the case of the applicant; Ogoejeofo v. Ogoejeofo (2006) LPELR-2308(SC); Inegbedion v. Dr. Selo-Ojemen & Anor (2013) LPELR-19769(SC).
The unchallenged evidence before the lower Court was that the 1st Respondent was detained from 18/2/2015 until about 3pm on 19/2/2015 for no justifiable reason. He was made to spend the night in deplorable conditions, all for no justifiable cause. He contended that his said detention violated his rights to personal liberty and human dignity protected under Sections 35(1) and 34(1) respectively of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Court below was duty bound to act on the uncontroverted facts as the truth of the matter. The lower

Court held, page 82 of the Record of Appeal:
?The fact that the 1st Respondent knew very well that the agreement they had with the Applicant is contractual in release(sic) thus civil but they went ahead to use the instrumentality of the Police – 2nd Respondent to recover same makes them guilty along with the 2nd Respondent for whatever the 2nd Respondent may be guilty of.?

I agree completely with the finding of the lower Court in this respect. The fact that the Appellant and the 1st Respondent had a contractual relationship was made absolutely clear by the letter written to the 2nd Respondent by the Appellant, yet the Appellant involved the 2nd Respondent to enforce a contract gone sour. A man who procures the Police to do some illicit duties for him should be ready to face the legal consequences of that illegality, and the law is well settled on this; Ogbonna v. Ogbonna & Anor (2014) LPELR-22308(CA).

The lower Court further held, page 83 of the Record of Appeal:
?The 2nd Respondent even though stated(sic) on the right pall(sic) by granting the applicant bail they now detailed(sic) by keeping him overnight before

effecting the release.
This is where the infraction arises. Particularly because from the letter written to them by the 1st Respondent, the fact that the agreement between applicant and 1st Respondent was renewed to them as contractual, they should have stayed clear of the case and advice parties to go to Court.
The 2nd Respondent has allowed itself to use mala fide. The 2nd Respondent have connived to infract on the Fundamental Right of the Applicant, I so find and hold. All reliefs 1 to 3 of the Applicant?s reliefs are answered in the affirmative relief 4 is granted as prayed. On relief 5, I hereby Order damages in favour of the Applicant against the two (2) Respondents jointly in the sum of Five Hundred Thousand Naira (500,000.00).”

The point has been made that the lower Court was duty bound to act on the uncontroverted facts before it. The findings and conclusion of the learned trial Judge were in line with the affidavit evidence. For that reason, I have no cause to disturb the conclusion of the learned trial Judge. I therefore resolve Issues 1 and 2 against the Appellant.

This appeal is completely without merit. It fails and is hereby dismissed. The orders of the lower Court made on 25/6/2015 are hereby affirmed.

The 1st Respondent is entitled to costs which I assess at N200,000.00 against the Appellant.

JUMMAI HANNATU SANKEY, J.C.A.: I have the privilege to read now the draft of the Judgment of my Lord, Otisi, J.C.A. just delivered.

In the said Judgment, his Lordship has exhaustively dealt with all the issues submitted to this Court for the determination of the Appeal, and I wholly agree.

Suffice it for me to adopt the reasoning and conclusion as mine and to also dismiss the Appeal as same is devoid of merit. I abide by the consequential orders contained in the Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with the reasoning and conclusion therein.
?
The appellant from its letter to the Police, Exhibit 6 attached to the 1st respondent’s counter – affidavit, knew without any doubt that the matter between it and the 1st respondent was purely contractual. The letter

states in part:
“May I bring to your knowledge a case of breached in contractual agreement involving Nigerian Breweries Plc (NBC (Plc) and her customer? as contained in sections 2 – 2.4 of the Brand Exclusivity Agreement

Rather than resort to arbitration as contained in clause 5.9 of its agreement with the respondent, the appellant wrote to the Police to get it involved in the matter. The appellant did not State that there was any threat of resistance or violence by the 1st respondent in its move to recover its 100 KVA generator set. Knowing fully well that the whole matter was a civil matter without any whiff of criminality the appellant was under a duty to show reasonable or probable cause for writing to the Police against the 1st respondent. See Okonkwo v Ogbogu (1996) 37 LRCN 580, 600. The appellant failed in this regard. The trial Court was therefore right in finding against appellant.
?
For the above reasons and the more detailed ones set out in the lead judgment of my learned brother, I agree that the appeal is without merit and I also dismiss the same.
I abide by the order as to costs made in the lead judgment.

Appearances:

A.J. Osayande, Esq.For Appellant(s)

D. O. Penda, Esq. holding the brief of T. Y. Ornguga, Esq. for the 1st RespondentFor Respondent(s)

Appearances

A.J. Osayande, Esq.For Appellant

AND

D. O. Penda, Esq. holding the brief of T. Y. Ornguga, Esq. for the 1st RespondentFor Respondent